The examination of competence: competence in international commercial arbitration
| Autor | Homayoun Mafi - Mohammad Reza Khademi |
| Cargo | Associate Professor, Department of Law, University of Judicial Sciences and Administrative Services, Tehran, Iran. - Ph.D. student of Private Law, University of Mazandaran, Babolsar, Iran. Corresponding Author Email: khademix@gmail.com. |
| Páginas | 403-425 |
Periódico do Núcleo de Estudos e Pesquisas sobre Gênero e Direito
Centro de Ciências Jurídicas - Universidade Federal da Paraíba
V. 8 - Nº 03 - Ano 2019
ISSN | 2179-7137 | http://periodicos.ufpb.br/ojs2/index.php/ged/index
403
THE EXAMINATION OF COMPETENCE: COMPETENCE IN
INTERNATIONAL COMMERCIAL ARBITRATION
Homayoun Mafi
1
Mohammad Reza Khademi
2
Abstract: The arbitration clause implies
the agreement of the parties' will to
concede (assign) the existing or future
dispute into arbitration, thus, in
accordance with the law, the inevitable
basis is to establish the referee's
authority and jurisdiction and the
influence of his/her verdict. Therefore,
the formation of a court of arbitration
and the issuance of a ruling requires that
the existence and the validity of the
contract of referral the matter to
arbitration is acceptable to the parties.
Although the parties may find a dispute
(difference) in the existence and validity
of the arbitration agreement, it is also
likely that one of the parties denies or
invalidates the existence of the
arbitration agreement. In such a
hypothesis, the formation of an
arbitration authority and its review will
entail consideration of the dispute before
it. For this reason, one of the important
1
Associate Professor, Department of Law, University of Judicial Sciences and Administrative
Services, Tehran, Iran.
2
Ph.D. student of Private Law, University of Mazandaran, Babolsar, Iran. Corresponding
Author Email: khademix@gmail.com.
issues that may arise in arbitration is the
determination of the competent authority
dealing with a dispute that may arise
between the parties as to the existence or
validity of the arbitration convention or
jurisdiction. The issue of competency
assessment (Competence -
Competence), which improves the
efficiency of the arbitral institution, can
be seen in the most legal systems.
Whether the arbitral tribunal has the
merit of deciding whether to qualify
under the terms of the arbitral agreement
is a question that has long been
addressed in the arbitration law as the
competence to determine jurisdiction.
Keywords: Competence –competence,
International commercial arbitration,
Jurisdiction, Arbitrator
1.Competence
Periódico do Núcleo de Estudos e Pesquisas sobre Gênero e Direito
Centro de Ciências Jurídicas - Universidade Federal da Paraíba
V. 8 - Nº 03 - Ano 2019
ISSN | 2179-7137 | http://periodicos.ufpb.br/ojs2/index.php/ged/index
404
The parties, referring the
resolution of the dispute to the arbitration
order, shall at the same time award
jurisdiction to the arbitrators. The
optional nature of the arbitration shall be
the basis for the establishment of
qualification rule for the referees. In
cases where arbitration is also
compulsory, the legal provisions arising
from the founding or treaties and the
outcome of the will of the states, create
the abovementioned competence (Dr.
Ahmad Amir Moezi-International
arbitration in commercial cases- page
251).
One of the effects of the
competence - competence doctrine is the
possibility of reviewing the competence
of the referees in the assumption of
objection to it by the arbitrator or the
arbitral tribunal. It is also possible to
review this matter after the judge or
judges through the judicial authorities.
The reviewing authority may, in
the case of a dispute, can rule on its
competence (jurisdiction). That is, the
judiciary (referee) can determine
independently whether it has the
discretion to resolve a particular dispute
without requiring court authorization,
even if the judiciary can first decide on
its jurisdiction (competence), the courts
will not been completely exclude
(Homayoun Mafi, page, 207).
The suitability (merit) of the
arbitral tribunal to decide on its
jurisdiction (competence) is the inherent
authority of the dispute resolution
authorities, including arbitration
tribunals, and is an essential element in
ensuring the ability and capability of the
judges to perform their duties, and
therefore we should not attempt to justify
it on the basis of foreign foundations.
The competency to determine the
competence (competence - competence)
is an effective rule designed to minimize
the complications of unjustified
objectionable protests against the
jurisdiction of the arbitral tribunal. Given
that the qualification competency
doctrine, gives the authority and
competence of decision-making to
jurisdiction (arbitral tribunal), thus, it
promotes the efficiency of the arbitration
body, since there is no longer any need
to go through the time frame and costs of
hearing a judge in order to obtain a
judicial decision on the jurisdiction of
the court of arbitration (arbitral tribunal)
(Ibrahim FI Shihata- page 25-26).
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